RSM McGladrey Retirement Resources provides recordkeeping, administration, consulting and actuarial services for retirement plans. These services are delivered through RSM McGladrey, Inc. RSM McGladrey Inc. is a member firm of RSM International – an affiliation of separate and independent legal entities. Making the most of Year-end Tax Planning Opportunities
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RSM McGladrey Retirement Resources provides recordkeeping, administration, consulting and actuarial services for retirement plans. These services are delivered through RSM McGladrey, Inc.
RSM McGladrey Inc. is a member firm of RSM International – an affiliation of separate and independent legal entities.
Making the most of Year-end Tax Planning Opportunities
Business owners and executives often seek to maximize contributions to their tax-qualified retirement accounts in order to:
– Accumulate sufficient assets for their future retirement years– Reduce current income tax liabilities– Make up for investment losses in recent yearsBUT…– Proportionately higher contributions for staff are usually not affordable
Solution:– Customized plan provisions can focus on maximizing contributions for owners
and executives while controlling contribution costs for other eligible employees
Maximizing owners under defined contribution (DC) plans
Maximum allowable contributions under a DC plan– $49,000 in 2009– $54,500 if age 50 or older and if plan includes 401(k) provisions
If this contribution level is sufficient for the business owner, contribution costs for other eligible employees can be controlled by:– Using safe harbor 401(k) provisions to get maximum leverage out of the
owner’s 401(k) salary deferral contribution– Using a class-based method to allocate the employer-funded contribution so
the owner(s) get a higher contribution rate than other plan participants
Contributions higher than the $49,000/$54,500 limits of a DC plan require the addition of a defined benefit (DB) pension plan
DB/DC combo is a 401(k)/profit sharing plan paired with a separate defined benefit pension plan– The 401(k) plan often has safe harbor provisions so owners can maximize their
salary deferral contributions– Both plans provide different contribution or benefit levels for owners than for other
plan participants– The defined benefit plan can be a traditional DB plan or a cash balance DB plan
Cash balance DB plans are now widely used in DB/DC combo arrangements
Not a type of plan– Pairing of two plans together to achieve desired contribution results– Think of this as a “Super Age-Weighted” Plan
Provides: – Significant increase in maximum allowable contributions and benefits for owners– Relatively modest additional contributions and benefits to other plan participants
Tax savings on additional contributions for owners often more than offset additional contribution costs for staff
Contributions or benefits provided under the combined plans must not discriminate in favor of Highly Compensated Employees (HCEs)
How do these plans pass non-discrimination testing? – DB and DC plans are tested on a combined basis as if a single plan – Single combined plan tested on a benefits basis, instead of contribution basis– Employer contributions in DC plan are converted into benefits payable at
retirement age and then combined with benefits provided under the DB plan– If combined benefits did not discriminate in favor of HCEs, then EACH plan is
Owners’ contributions remain at DC plan maximum - $49,000– One owner’s contribution increased by $5,500 - 401(k) catch-up amount
Minimum required contribution for staff decreases significantly– From 20% of pay to 5% of pay– From $165,400 to $41,350– Annual staff contribution cost reduction - $124,050
Higher profit sharing contribution for the staff is allowable, but no longer required to support the maximum contribution amounts for the owners
Improved DC plan design met only one of the owners’ two objectives– Significantly reduced the contribution costs for staff, but– Did not increase the annual contributions for the owners
Must add a defined benefit plan in order to increase the owners’ contributions beyond the $49,000/$54,500 maximum of a DC plan
Increase owners’ contributions through plan design – DB/DC combo
1 Excludes catch up contributions
2 Assumes safe harbor 401(k) with QNEC of 3% and profit sharing contribution of 2.0% for staff, 13.26% for physicians
3 Cash Balance Plan with Benefits Payable at 62 and Safe Harbor 401(k) with a Cross Tested Profit Sharing Plan
NOTE: As a result of the funding rules of The PPA of 2006, a slightly lower contribution is expected for the benefits accrued by Highly Compensated Employees for
the first year of the plan. Future years' contributions will likely increase.
Owners’ annual contributions increased significantly over DC-only plan– Dr. Adams went from $54,500 to $172,160, an increase of $117,660/year– Dr. Baker went from $49,000 to $143,410, an increase of $94,410/year– Dr. Cox went from $49,000 to $77,260, an increase of $28,260/year– Total increase in owners’ contributions over DC-only plan: $245,830/year
Staff contribution costs higher than in optimized DC-only plan– $82,700 for staff in DB/DC combo, compared to $41,350 in optimized DC plan– $245,830 increase in benefits for owners offset by cost increase of $41,350 for
staff, leaving a net gain of $204,480 for owners Staff contribution costs in DB/DC combo still 50% lower than under
the original profit sharing plan– $82,700 for staff in DB/DC combo, compared to $165,400 in original DC plan
Cash balance and class-based DB/DC plan designs work best when there is one target employee who is at least 48 years old and no more than 10 staff employees who are mostly younger than the target
Quick Math: – A 48-year-old target can get up to $160,000 in total annual contributions– Contributions for 10 staff: 8% of pay x 10 x avg. comp of $35,000 = $28,000– Tax savings on total contribution: $188,000 x 35% = $65,800– Tax savings for employer are greater than contributions for the staff
Works well for groups of target employees as long as there is a maximum 10:1 ratio of staff to target employees
An ESOP is a possible solution for business owners who
are not ready for a complete ownership transition but are looking for partial diversification of their personal net worth
are concerned federal capital gains tax rates will increase and would like to sell a portion of the business at current rates
are looking for complete ownership transition but – have not been able to locate a buyer or – are concerned about the impact on employees and/or community
Employer obtains a loan from a commercial lender Employer lends money to ESOP as a securities acquisition loan ESOP uses loan proceeds to purchase employer securities Employer contributes cash annually to the ESOP to service the loan
– Because the contribution to the ESOP is tax deductible as a retirement plan contribution, the principal payments on the securities acquisition loan are essentially tax deductible
– I.e., all payments made on the debt incurred to fund the buy out of a shareholder are deductible
Shares of company stock are allocated to participants accounts over time– (e.g., a 7 year loan term would result in 7 years of share allocations to employees)
Shareholder sells C corp stock to ESOP and invests proceeds in “qualified replacement property”
Tax on the gain is deferred. – The basis in the stock sold carries over to the replacement property but if such property is held until
death, there is a step up in basis so that the capital gains tax can be avoided completely.
Qualified replacement property often structured as floating rate notes The ESOP must own 30% of the company after such sale There are restrictions applicable to ESOP -
– Selling shareholders– Certain family members – More than 25% shareholders will be prohibited from participating in the ESOP
Mr. Clyde owns 100% of Clyde, Inc. (a C corporation). He is 62 and while not ready to retire, his investment in Clyde, Inc. is the vast majority of his net worth and he is looking for partial liquidity now.
– The value of Clyde, Inc. is $10 MM. His basis is $1 MM. – If he were to sell 30% to the ESOP and elect the Section 1042 tax deferred rollover, he can defer
the tax on the $2,700,000 gain. – The ESOP would borrow the $3 MM needed to buy the shares. Both the interest and principal paid
on this loan would be deductible to Clyde, Inc. (assuming the payments are within the contribution limits applicable to qualified plans.)
– The selling shareholder has achieved diversification in the amount of $3 MM. – The selling shareholder has deferred tax on a gain of $2,700,000!– The company has been able to deduct the principal payments of $3MM!
Ms. Style owns 70% of S+12, Inc. (an S corporation). There are 12 minority shareholders. Ms. Style is ready to retire completely, sail off in the sunset and would like to completely liquidate her holdings. She is also concerned about future increase in the capital gains tax rate so she wants the company to buy her out as soon as possible. The 12 minority shareholders are not financially able to purchase her entire interest at this time.
– Assume value of company = $20,000,000– Assume taxable income = $6,000,000– Assume annual qualified plan contributions = $350,000– Assume S corporation distributions equal to 45% of taxable income
Culture of “ownership” and increased employee productivity– According to Rutgers
ESOPs in closely held companies appear to increase sales, employment, and sales per employee by about 2.3% to 2.4% per year over what would have been expected absent an ESOP
– In May 2009, the Employee Ownership Foundation surveyed corporate members 88% of respondent companies outperformed the three major stock indices in
2008, and 65% reported that the ESOP had improved the overall productivity of their employees.
An ESOP is subject to nondiscrimination, eligibility, vesting requirements enforced by the IRS and DOL for all qualified plans
An independent appraiser must determine fair market value of company stock for any transactions and then annually – Discounts for lack of marketability and minority ownership may apply
Corporate governance– A trust is the legal owner of the ESOP’s shares– Trustee will generally vote the shares owned by the ESOP
In certain situations ESOP participants must be given the right to vote (merger, recapitalization, sale of substantially all of the assets, etc.)
– An independent trustee is recommended for transactions.– On an ongoing basis, the trustee can be one or more “insiders.”
Current promise to pay future benefits Benefits are contingent on continued employment Limited to select employees Flexibility in setting the “vesting date” Benefits paid following vesting or a specified later date
No current cash benefits Cost efficient Demonstrates company commitment to the key employee Can be used in any business industry and for non-profit organizations
ABC Company – Experiencing a downturn with reduced revenues and pressure on margins – ABC believes the downturn is tied to the slowdown in the overall economy. – ABC hopeful that its business will recover over the next 2 – 3 years. – Instituted cost containment program, including pay freeze for all employees.
Mary is a highly valued, experienced employee of ABC– Would be very attractive to a competitor company. – ABC wants to demonstrate its loyalty and commitment to Mary with a financial incentive
to remain with ABC during this lean period. – ABC promises to pay her a bonus of $30,000 if she remains through December 31,
2012 (at which point the Company believes business conditions will be back to normal) .
Selling Stock to an ESOP – When it Works and Why– November 4 & 5, 2009
Mellody Hobson - The State of Retirement Plans in America – November 16, 2009
401(k) Boot Camp– Getting People Into the Plan – November 30, 2009– Getting Money Into the Plan – December 2, 2009– Getting Money Out of the Plan – December 4, 2009
For additional information:– 888.RET.401K or visit us online at www.rsmmcgladrey.com